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The trouble with trust

One of the many problems with ex parte communications is that judges are exposed to information or arguments that are by definition one-sided. Judges rely on such communications at their peril – and to the detriment of the parties and the judicial process.

This inherent untrustworthiness was demonstrated in a recent judicial discipline case from Mississippi involving a chancellor (Chancellor Shoemake) who had signed ex parte orders that resulted in the dissipation of assets from a ward’s estate. The orders were entered at the request of the conservator’s attorney (McNulty), who was also the chancery court’s law clerk and the guardian ad litem for the ward and who was appointed by Chancellor Walker. Contrary to chancery court rules, the requests for relief were not sworn to by McNulty or signed by the conservator (the ward’s mother). The orders benefited the contractor who was building a handicapped-accessible home for the ward; the contractor was Chancellor Walker’s nephew.

The Mississippi Supreme Court acknowledged that, “in ex parte chancery court proceedings, it is common, and usually legitimate, for attorneys to confer with chancellors concerning the routine management of the business of wards.” However, noting that an attorney’s signature alone, without additional notarization, was insufficient support, the Court concluded that Chancellor Shoemake erred by granting “the relief requested without further investigation into the matters beyond what McNulty presented to him.” Commission on Judicial Performance v. Shoemake, Opinion (Mississippi Supreme Court April 14, 2016).

For Shoemake to sign orders without further consideration of the facts at hand was a disservice to the ward and conservatorship. That the conservatorship was originally assigned to Walker is beside the point. When Shoemake signed the orders, he affected Victoria’s estate. Had Shoemake made a basic inquiry into who was representing the ward’s interests, and not just the Conservator’s interests, he quickly would have discovered McNulty’s dual roles as both Victoria’s guardian ad litem and as the attorney for the conservator for the conservatorship.

The Court concluded that Chancellor “Shoemake contributed to the overall mismanagement of Victoria’s conservatorship and was directly responsible for the unchecked dissipation of $23,000 from her accounts. Because chancellors serve as the ultimate guardians of their wards’ estates, his negligent management of the petitions and orders has eroded the confidence the public should hold in the judiciary.”

On the question whether the chancellor’s conduct was willful, the Court included the Commission’s “excellent response” from its findings of fact.

Respondent testified that he was influenced by another judge to involve himself in the Newsome Conservatorship. Respondent’s actions when signing the orders presented to him by McNulty may not have been intended to commit harm to the ward, but they did; and his actions were not performed with the degree of diligence required of a chancellor overseeing a ward’s estate. Respondent testified that he trusted and had faith that lawyers presented him with documents that were truthful and in the best interest of their clients. However, by relying on lawyers to be ethical and forthright, and failing to follow the Uniform Chancery Court Rules, and his responsibilities as a “superior guardian,” Respondent failed in one of his most important roles as a chancellor.